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Media Alerts - United States v. Moore and United States v. Latham -- Fourth Circuit
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February 23, 2016
  United States v. Moore and United States v. Latham -- Fourth Circuit
"Let's Kill My Wife:" Ex-husband and Mistress Convicted in Murder-For-Hire Plot

Areas of Law: Criminal Procedure; Constitutional Law; Evidence

Issue Presented: Whether the district court constructively amended the indictment through erroneous jury instructions in violation of the Fifth Amendment and improperly admitted hearsay and character evidence.

Brief Summary: Mr. Latham, a banking executive, divorced his wife. Latham was dating his assistant at the bank, Ms. Moore. Latham and Moore hired two ex-cons, Mr. Wilkinson and Mr. Yenawine to murder Latham's ex-wife. Both Latham and Moore were convicted in district court. Latham was sentenced to 120 months and Moore received 180 months incarceration. At issue here were the following charges for Latham and Moore: (Count 1) conspiracy to travel in interstate commerce "with the intent that a murder be committed for compensation;" and (Count 3) unlawful and wilful travel in interstate commerce "'with intent that a murder be committed' for compensation," both in violation of 18 USC § 1958(a).

Latham and Moore argued the trial judge improperly amended the indictment during jury instructions by making references to interstate commerce "facilities" on multiple occasions. Applying the fatal variance test, the United States Court of Appeals for the Fourth Circuit Court held the district court did not constructively amend the indictment in violation of the Fifth Amendment.

The key question in a fatal variance analysis is whether "a defendant has been tried on charges other than those listed in the indictment." United States v. Floresca, 38 F.3d 706, 711 (4th Cir. 1994). The Fourth Circuit held that the district court's two references to the "use of facilities" did not constitute a constructive amendment because the bulk of the jury instructions properly tracked the indictment and omitted any mention of the use prong. The court also noted the parties' arguments focused solely on the travel prong.

In addition to the fatal variance claim, Latham and Moore also argued that (1) the district court improperly admitted out-of-court statements made by Yenawine to his ex-cellmate; and (2) the district court erroneously admitted "character evidence" as to Moore. The Fourth Circuit held the statements made by Yenawine to his ex-cellmate were properly admitted under Federal Rule of Evidence 804 in the discretion of the district court. As the to the admission of "character evidence," the Fourth Circuit held that none of the testimony was admitted in error.

Thus, the Fourth Circuit affirmed the district court's findings.

To read the full opinion, click here.

Panel: Chief Judge Traxler, and Judges Motz and Harris.

Argument Date: 12/10/2015

Date of Issued Opinion: 01/20/2016

Docket Number: No. 14-4645

Decided: Affirmed by published opinion.

Case Alert Author: Eric Suárez, Univ. of Maryland Carey School of Law

Counsel: Argued: Andrew Mackenzie, BARRETT-MACKENZIE, LLC, Greenville, South Carolina; James Arthur Brown, Jr., LAW OFFICES OF JIM BROWN, PA, Beaufort, South Carolina for Appellants. Rhett DeHart, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee. ON BRIEF: William N. Nettles, United States Attorney, Columbia, South Carolina, Nathan S. Williams, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Charleston, South Carolina, for Appellee.

Author of Opinion: Judge Harris

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 02/23/2016 12:52 PM     4th Circuit  

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